Relevance in Discovery and at Trial
An oft stated maxim in litigation is, “Relevance for purposes of discovery (e.g., interrogatories, requests for production) is different from relevance regarding admissibility of evidence at trial.” And sometimes the proponent of that maxim also adds that the admissibility of the requested evidence is not a consideration in discovery. That is where the proponent would be wrong.
The admissibility of evidence is definitely a consideration in discovery. Colorado Rule of Civil Procedure 26 states in pertinent part that, “Parties may obtain discovery regarding any matter, not privileged, that is relevantto the claim or defense of any party….Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”
The second part of the quote means, in part, that the requested evidence need not be admissible at trial in order to be discoverable. From this, many attorneys assert that their discovery request is proper because it is “reasonably calculated to lead to the discovery of admissible evidence” and that it doesn’t matter that a lot of the requested information – and maybe even all of the requested information – is not admissible at trial because, again, the request itself is “reasonably calculated to lead to the discovery of admissible evidence” even if no admissible evidence actually later turns up; the probability that some admissible evidence will turn up makes the request proper and renders the responding party’s relevance objection nugatory. However, that position is only half right.
That position is only half right because: (1) the validity of the discovery request can indeed turn on whether the evidence requested is admissible at trial; and (2) the responding party does not have to produce irrelevant evidence even if the discovery request is proper.
Let’s examine the framing of the discovery request. The discovery request is, “Produce the plaintiff’s health insurance ledger.”
The plaintiff was injured in a car crash and his health insurer paid some of his incident related medical bills, so the health insurance payments are relevant to the plaintiff’s medical expense damages. However, judges in Colorado courts often exclude evidence of the health insurance ledger and payments due to the Colorado collateral source statute. Let’s say that the judge in this particular case always excludes the health insurance ledger and payments from evidence at trial. So we know that the health insurance ledger and payments are not admissible at trial. What is the significance of that?
The significance of that is that the discovery request for the production of the health insurance ledger is not reasonably calculated to lead to the discovery of admissible evidence. The discovery request is seeking only evidence that is already known to be inadmissible, so the request is improper. The responding party does not have to produce the health insurance ledger because there is no valid request to respond to.
Now, consider a much broader request: “Produce all materials regarding subrogation and/or reimbursement claims against the plaintiff’s recovery.” This request is proper because it is reasonably calculated to lead to the discovery of admissible evidence: subrogation or reimbursement claims that are not excluded from evidence under the collateral source rule; e.g., a doctor’s lien. Thus, the plaintiff would have to provide the health insurance ledger pursuant to this discovery request regardless of its admissibility at trial – because the request was reasonably calculated to lead to the discovery of admissible evidence – the doctor’s lien (to impeach the doctor’s credibility or objectivity).
With a discovery request, you have to determine what admissible evidence may be discovered through the request. So you have 2 situations: (1) where the requester is trying to get specific, identified materials; e.g., the health insurance ledger; and (2) where the requester is trying to get materials not specifically identified.
In the case of identified materials (Please produce the health insurance ledger), the question is easy: Is the health insurance ledger admissible at trial? If yes, then the discovery request is proper. If no, then the discovery request is improper.
In the case of not specifically identified materials, the question is not focused on the admissibility of a specific item of evidence; the question is focused on whether the bundle of materials obtained through the discovery request will probably contain at least one item that is admissible in evidence.
If the discovery requests, for example, all materials regarding an interest in the Plaintiff’s recovery including but not limited to liens, subro claims, etc, and there probably is at least one admissible item of evidence (e.g., a doctor’s lien), then the discovery request is proper. So then the responding party has to provide all relevantmaterials – including the inadmissible health insurance ledger (assuming that the judge always excludes the health insurance ledger).
However, the responding party does not have to provide irrelevant materials. The responding party NEVER has to provide irrelevant materials. Rule 26(b)(1) states that “Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party…”
Relevance means that the evidence will either increase or decrease the probability of a claim or defense. Materiality, cumulative evidence, waste of time, and undue prejudice are not considered in discovery - as they are at trial. This is the difference between relevance for purposes of discovery as opposed to relevance at trial.
The key is that the discovery request itself may often be proper (because there probably is at least one item of evidence that is relevant and admissible) but the responding party still does not have to provide everything that is being asked for – because some of what is being asked for is irrelevant.
The fact that some of what is being asked for is irrelevant does not make the discovery request improper. The request is proper but the responding party does not have to provide irrelevant materials.
For example: “Please produce all medical records regarding the Plaintiff’s neck and back in the year prior to the incident.” The Plaintiff has neck and back injuries from the incident.
The request is proper.
So does that mean that the Plaintiff has to produce the medical records regarding the removal of a tattoo from the lower back? No. Why not? Because the tattoo removal records are not relevant. It does not increase or decrease the probability of the Plaintiff’s claims or the Defendant’s defenses.
However, the fact that the request has asked for irrelevant records does not mean that the request is improper. The request is proper but the responding party does not have to provide the tattoo records because they are not relevant.
Irrelevant information NEVER has to be produced.
On the other hand, it is not true that relevant information always has to be produced in discovery: When the discovery request is framed to seek only inadmissible evidence then that inadmissible evidence does not have to be produced in discovery even if it is relevant. Admittedly, that would be an infrequent occurrence. However, it does prove that admissibility of evidence at trial must be considered in discovery.
Fort Collins Colorado Auto Accident Injury Attorney Mac Hester
